The
accused are summarily tried before this Court in terms of section 144
of the Criminal Procedure and Evidence Act, 1981. They
are charged
with assault with intent to murder; in that upon or about the 6th day
of August, 1984 at or near the Maseru Bus Stop
in the Maseru district
the accused did jointly or one or the other or all of them unlawfully
assault Michael Moeketsi Mokhehlane
by shooting him in the stomach
with a firearm, stabbing him in the thighs with a knife and cutting
off his right testicle with
a knife with the intention of killing
him.

The
accused pleaded not guilty to the charge. Mr. Kabatsi counsel for the
Crown, withdrew the charge against accused No. 4 Bereng
Makoanyane
Seeiso. As the accused had already pleaded Mr. Edeling, counsel for
accused 1 and 2, moved that accused 4 was entitled
to verdict of not
guilty. Accused 4 was found not guilty and discharged. The numbering
of the accused was changed and accused 5
became accused 4.

2

Mr. Buys
appeared for accused 3 and 4.

Mr.
Kabatsi made his opening address and handed in a copy of his address
in which a detailed account of what

each of
the accused did in the commission of the offence charged.

Mr.
Edeling objected to the charge on the ground that it is embarrassing
because it does not state what each of the accused did
in the
commission of the offence. I ruled that the opening address was part
of the Crown case and that as it gave a detailed account
of what each
of the accused did that was sufficient.

The first
Crown witness is Dr. A. Masemene, stationed at Queen Elizabeth 11
Hospital in Maseru, He holds an M.B. and CH.B. degrees.
During the
evening of the 6th August, 1984 he was in the theatre where he was
carrying out a caesarean operation. He received a
report from the
sister that there was a man who was seriously injured. He instructed
the sister to give him blood. He later saw
the patient

in Ward
4 and was able to talk to him. On examination he found that the
patient had

a 4
cm. long cut on the inner side of the left thigh,

two
small wounds on the abdomen just below the umbilicus,

a
cut on the scrotum and

the
right testicle was missing.

The
injuries were fresh and the injury on the thigh was caused with a
sharp instrument such as a knife. The two wounds on the abdomen
were
bullet wounds and they were circular in shape The entry wound was on
the left and the exit wound was on right. A sharp instrument
caused
the cut on the scrotum and

3

it was a
clean cut. The doctor did not ask the patient his name but his names
were already on medical report form prepared by the
police. He handed
the report as an exhibit in this case and it was marked Exhibit A.
The medical form is L.M.P. 47. The first page
of the form is a
request to the doctor to "examine the undermentioned and to
submit his report on the reverse side of this
form." Then follow
the name, sex, age, address, date of the injuries and a short history
of the case as reported. All this
information is written on the form
by the police officer who issues the form. He then signs the form and
date stamps it.

The
reverse side is filled by the doctor who examines the patient.

Under
cross-examination Dr. Masemene explained that on the 6th August, 1984
when he examined the patient he made notes and that
on the day he
(patient) was discharged he compiled his report from the notes he
made on the 6th August, 1984. The notes were not
handed in because
they are hospital property and confidential. Although the missile
injury was superficial it was still serious
because it caused
bleeding and there was loss of blood. At the time he examined the
patient the wound on the thigh had already
been sutured. He examined
him at about 9.00 or 10.00 p.m. and the wounds were less than five
hours old. The injury on the scrotum
could cause terrific shock. He
denied that the examination was not proper and exact.

The
complainant, Michael, Moeketsi Mokhehlane, testified that he had
known accused 1 since 1974 as a very prosperous businessman.
He first
knew accused 2 on the day he and accused 1 had gone to fetch him from
Malunga Hotel. He said

4

he was
talking of the events of the 6th August, 1984.

He also
knew both accused 3 and accused 4. As far as accused 4 is concerned
he remembers buying beer for him and that was before
the 6th August,
1984. Immediately after the complainant had given his knowledge of
the accused persons the Crown Counsel said:
"Mr. Mokhehlane, you
have just mentioned the 8th of August, I would like to take you back
to that date" and tell the
events of that day. Obviously the
Crown counsel was mistaken; the witness had never mentioned the 8th
of August. He had mentioned
the 6th of August, 1984.

A

fter that
introductory question by the Crown Counsel the witness said that he
saw accused 1 at Lower Thamae at about 4.20 p.m. The
complainant was
driving his taxi when he was stopped by accused 1 driving a brown
Mercedes Benz car. Accused 1 told him that he
had been looking for
him for a long time as he (complainant) has information which would
be of great assistance in a matter accused
1 had at the charge
office. Accused 1 said they should go to the charge office at once.

It was
agreed that the complainant should leave his = car at his home which
was not far from where they had stopped. The complainant
left his car
at his home and they travelled in accused 1's car. They called at
Malunga Hotel where they were joined by two men,
one of them was
accused 2. The other man was a stranger to the complainant. Accused 1
drove towards town but when they came to
the traffic circle instead
of driving towards the charge office accused 1 accelerated and drove
towards the Maseru bus stop and
stopped near the door of his bottle
store. He suddenly

5

took out
his pistol and pointed it at the complainant ordering him to come
out. He also instructed the two men (accused 2 and the
stranger) to
"cock" so that "this dog" does not run away.

The
complainant came out of the car and was ordered to go into the bottle
store. He saw one Jeffs near the door and told him that
his bag
(Jeffs's) was in his car and

that he
would bring it. Accused 1 pushed him into the bottle store and was
led into an inner office. When they entered into the
office he
noticed that he was accompanied by accused 1, accused 2, accused 3
and the strange man who had joined them at Malunga
Hotel. Accused 1
took a sjambok from accused 3 and hit the complainant all over the
body but he managed to ward off the blows.
Accused 1 accused him of
having a love affair with one of his wives and asked how such a rag
and dog could be in love with his
wife. As the complainant denied the
accusation against him accused 1 became more angry and hit him with
the sjambok. All of a sudden
there was a firearm report and then the
complainant

was
pointing a firearm at him, he got frightened and rushed at him and
pushed the arm holding the firearm. There was a second firearm
report
and accused 1 retreated for a distance of 3 metres and then shet the
complainant on the stomach. He fell down and accused
1 ordered
accused 3 to handcuff complainant's left hand to the left foot.
Accused 3 complied.

During
the shooting accused 1 shot his left hand and told accused 2 and 3
that he was going to consult a doctor. When he left the
office the
complainant was still bleeding from the wound on the stomach. Accused
2 and 3 guarded him while accused 1 was away and
they did not assault
him. He returned after about 40 minutes and looked for another pair

6

of
handcuffs. Accused 2 brought them and the right hand was handcuffed
to the right foot. Three of accused 1's wives were brought
into the
office and the woman alleged to be in love with the complainant
denied this and said that when she was pregnant she liked
him but
never told him. It was at about 7.15 p.m. and again accused 1 left
with his wives. He returned at about 9.00 p.m. He again
instructed
one of his drivers to fetch his junior wife. When she arrived he
expressed his gratitude to her for having informed
him of what was
going on between his wife and "this dog". He again left
with his wife and returned after a few minutes.
He then asked accused
2 and 3 to give him a knife but they did not have it. An attempt was
made to buy it from the shops but it
was discovered that the shops
were already closed as the time was 9.20 p.m.

At this
juncture accused 4 entered into the office and accused 1 asked him to
give him a knife. Accused 4 complied and yet he saw
that the
complainant was handcuffed in a very peculiar manner and was still
bleeding. Accused 1 instructed accused 2 and 3 to pull
him
(complainant) to the middle of the office. They complied. Accused 1
ordered him to open his thighs. When he refused to do so
he stabbed
him on the thigh and ordered accused 2 and 3 to open his thighs.
Accused 1 cut trousers and exposed the private parts.
There was a
fierce struggle till another man was called into the office. The
complainant was overpowered and he lost consciousness.
When he
regained his senses he noticed that they were standing besides him
and watching him. They got hold of him again and accused
1 cut his
scrotum and took out the right testicle and showed it to him. The
complainant was screaming and pleading with accused
1 not to

7

castrate him.

Letele
Emmanuel Makhele testified that on the 6th August, 1984 he was going
to work when he saw the complainant driving his vehicle
going in the
direction of T.Y. About fifteen minutes later he saw accused 1
driving in the same direction. When he came to the
bus stop the time
was about 4.30 p.m. Accused 1 arrived at his bottle store and parked
his vehicle on the pavement near the door.
Accused 1, the complainant
and two men came out of the car and the complainant was pushed into
the bottle store by accused 1. He
denied that before the complainant
was pushed into the building he had a conversation lasting about two
minutes with another person.
If the complainant talked to anybody at
all he must have done while he was still walking. At the time he saw
these things he was
on the other side of the road but crossed to the
bottle store side because he was curious to find out what was
happening to the
complainant. When he entered into the bottle store
they were expelled by the employees of accused 1 who insisted that
only people
who had come to buy should remain.

The
fourth witness is 'Mamohlakola Letsatsi. On the 6th August, 1984 he
was going to her home when the complainant drove past her
going
towards his home. Accused 1 was following him. A few minutes later
before she reached her home she saw that accused 1 was
driving back
to town and the complainant was in his (accused 1's) car having left
his car at home.

Mojalefa
Baartjlea was near the door of the bottle store

when the
car driven by accused 1 arrived. When the occupants of the car came
out the complainant told him his bag was

8

in his
(complainant's ) car. He explained in Court that the bag contained
his electrical tools and that the bag remained in complainant's
car
because he had given him a

lift in
his taxi. He denied that the complainant was his friend.

The
evidence of D/Sgt. Monyane was to the effect that on the 7th August,
1984 accused 1 came to the C.I.D. office at about 4.30
p.m. He
(accused 1) told him that on the previous day he shot himself on the
hand when he tried to shoot the complainant. He attended
the scene of
the crime in an office at the bottle store of accused 1. He saw
something red on the floor and accused 1 explained
that it was the
blood of the complainant. He also saw two holes on the mat on the
wall and accused 1 explained that they were caused
by the bullet and
that he threw the spent bullets and shells into the sewerage. But a
search in the sewerage drain revealed no
bullets nor shells. When he
was asked about the testicle accused said he threw it into the dust
bin. Sgt. Monyane looked for it
in the bin but he did not find it. On
the following day accused 1 brought a .22 pistol to Sgt. Monyane at
the C.I.D. office.

Under
cross-examination Sgt. Monyane told the Court

that
accused 1 admitted that he had acted against the law because he found
the complainant with his wife and had shot him and also
castrated
him. The case for the defence was closed without calling any of the
accused to give evidence.

The
report of Dr. Masemene is being challenged on the following grounds:-

9

he
did not enter the name of the patient on the report,

at
no stage did the doctor identify the complainant as the patient he
saw,

he
handed the report without confirming the contents thereof, and
therefore it is not evidence of the contents.

In this
regard I was referred to a case of S. v. Joubert 1971(3) S.A. 924 and
to Hoffmann: South African Law of Evidence, second
Ed. page 317.

In regard
to (a) above I have already explained that page one of the medical
form (L.M.P. 47) is filled by the police and they give
the
particulars of the patient they request the doctor to examine. On the
reverse side there is no space for particulars of the
patient except
the space for description of the injuries. It is therefore
under­standable why the handwriting on the one side
is different
from that on the other side.

In regard
to (b) above it would be expecting doctors to do miracles if in a big
hospital like Queen Elizabeth 11 Hospital where
a doctor examines
hundreds of patients in a month, we would expect him to recognize
faces of such patients. In any case, if the
defence had any doubt as
to the identity of the patient examined by the doctor that he was not
the complainant in this case they
would have directed their
cross-examination to that issue. Castration of a human being is such
a rare occurrence in this country
that almost all the witnesses
including the doctor said it was their first time to see it. There
can be no mistaken identity that
the patient referred to in the
doctor's report is the complainant in the present case.

In regard
to (c) above I agree that there is authority to that effect. In
Letuma v Rex, 1976 LLR. 1 at p. 4 where

10

Cotran,
A.C.J., (as he then was) said:

"This may give a false impression to a trial judge or a judge
sitting in an appeal. I can understand a magistrate's reluctance
to
write down in long hand what a doctor says, especially if it is
merely a repetition of what he has written in his report but
it is
important to remember that his report as such is not evidence. It is
what he says orally, viva voce, that is the evidence
that can be
relied upon, and this despite some criticism from Hoffmann's Treatise
on Evidence 2nd Ed. at 317. A judge or an Appellate
Court will have
much more confidence if the magistrate writes down clearly, in such a
manner as will leave no doubt, that the doctor
is simply refreshing
his memory from the report, not reading it (Rex v Van Schalkwyk,
1948(2) S.A. 1000 (O), and where the report
is handed in as an
exhibit it is imperative for the magistrate to note not only that the
doctor adhered to it, but also confirmed
that it is correct (Rex v
Manda) 1951 (3) S.A. 158(A), R. v. Birch-Monchrieff 1960(4) S.A.
425(T) and S. v. Joubert. 1971(3) S.A.
924(E)."

I
entirely agree with the learned Acting Chief Justice and the South
African Case cited in the judgment, but since that case was
decided
our Criminal Procedure and Evidence Proclamation of 1938 has been
repealed and replaced by the Criminal Procedure and Evidence
Act
1981, section 223(7) reads:

"In any criminal proceedings in which any facts ascertained by a
duly qualified medical practitioner in regard to any injury
or state
of mind or condition of body of a person or his opinion as to the
cause of death of a person, or any facts ascertained
by a veterinary
practitioner as to any injury or his opinion as to the cause of death
to any animal may be proved by a written
report signed and dated by
such medical or veterinary practitioner and that report shall be
prima facie evidence of the facts recorded
in it." (My
underlining).

In my
view the decision in Letuma's case, supra, that

a medical
report is not evidence has been overridden by the above statutory
provision that a medical report is prima facie

11

evidence
of the facts recorded in it. All that the statute requires is that it
should be signed and dated by the doctor. The next
question is
whether the requirement that the doctor should adhere to the contents
of his report and confirm it as correct has fallen
away. Mow that the
medical report has been made prima facie evidence of the facts
recorded in it I am of the opinion that the doctor
need not adhere to
and confirm his report because it is evidence. Before section 223(7)
was enacted the doctor had to confirm the
report because it was not
evidence.

I may add
that the doctor gave his evidence in a manner that clearly showed
that he was merely refreshing his memory from the report.
Be that as
it may, I am of the view that section 223 (7) of our Criminal
Procedure and Evidence Act 1981 has abolished all these
technical
points. I have checked Swift's Law of Criminal Procedure, 2nd Ed. and
found that the South African Criminal Procedure
Act of 1955 did not
have a provision similar to our section 223 (7) of the 1981 Act. It
will not be wise for our Courts to follow
the South African cases
dealing with the admissibility of medical reports because our
statutory law differs from theirs.

I have
been asked by the defence counsels to disregard the evidence of the
complainant because it related to the 8th August, 1984,
which is
irrelevant to the present charges. The complainant said he first knew
accused No.2 when he and accused 1 fetched him from
Malunga Hotel on
the 6th August, 1984. He again referred to the 6th August, 1984 when
he said prior to that date he bought beer
for accused 4. Immediately
after he had said this Mr. Kabatsi put a leading

12

question
and said: "Mr. Mokhehlane, you have just mentioned the 8th of
August, I would like to take you back to that date ......"
The
complainant had never mentioned the 8th of August, he had
twice referred to the 6th August, 1984. It was patently clear that it
was a merel slip of the tongue on the part
of Mr. Kabatsi but because
this was a leading question by the counsel to his own witness he
probably did not suspect that his own
counsel would mislead him. In
his book the "South African Law of Evidence," 2nd Ed. at
page 312 Hoffmann has this to
say regarding leading questions:

"Questions of this type may not be put because a witness may be
too lazy to do more than assent to counsel's suggestions,
or too
polite to correct him on what may seem to the witness to be
unimportant inaccuracies."

I agree
with the learned author and I wish to add that in the present case
P.W.1 referred to the 6th August, 1984 and the complainant
referred
to the 6th August, 1984 twice before the misleading question was put
to him. He probably did not even hear that a different
date was
mentioned. I did not hear that a different date was being mentioned
because my notes still show the 6th August, 1984.
It was only when
the tape was played that I heard for the first time that the wrong
date had been mentioned. Mow the question is
whether the defence was
entitled to take advantage of an obvious slip of the tongue by Mr.
Kabatsi. Mr. Edeling argued that there
was no duty on the accused or
their counsel to assist the Crown in the presentation of its case. He
referred me to S. v. Joubert.
supra, at page 928. That case is not
authority for the proposition that the defence or the Crown should
take one another by surprise
where an obvious mistake has been made
by another party. If the complainant

13

in the
present case contradicted himself with regard to date (the 6th and
the 8th) the defence had to cross-examine him on this
point because
it was clear that he never intended to say the 8th August. As the
wrong date was introduced by a leading question
it has no effect at
all on the proceedings.

The next
question is whether time was of essence in the present case. In
Motloli v Rex 1976 LLR. 177 it was held that when an accused
raises
an alibi defence the element of time is of the essence and the Court
must be careful lest the accused be prejudiced by admission
of
evidence which does not coincide with the date on the charge. (See
Section 155 of the Criminal Procedure and Evidence Act 1981,
R. v.
Jooste, 1928 A.D. 369). In the present case the accused have not
raised the defence of alibi and they cannot be heard to
say they were
prejudiced by the contradictions made by the complainant. As far as
the authorities show time or date becomes of
the essence only

if the
defence is an alibi. It seems to me that it was unwise of the defence
counsels to leave the evidence of the complainant unchallenged
because time was not of the essence in pre present case; moreover, it
was clear that the 8th August was mentioned by mistake by
the Crown
counsel and also that it was introduced through a leading question
and would thus have no force and effect. A criminal
trial must be
fair not only to the accused but to the Crown as well. It would not
be a fair trial if one of the parties is allowed
by the Court to take
advantage of obvious mistakes due to a slip of the tongue.

"If
any particular day or period is alleged in any charge as the day or
period during which any act or offence was committed
–

proof
that the act or offence was committed on any other day or time not
more than 3 months before or after the day or period
laid down
therein shall be taken to support such allegation if time be not of
the essence of the offence; and

proof
may be given that the act or offence was committed on a day or time
more than 3 months before of after the day or period
stated in the
charge, unless it is made to appear to the court before which the
trial is being held that the accused is likely
to be prejudiced
thereby in his defence upon the merits."

This
section again emphasises that where time is not of the essence proof
that the offence was committed on a day three months before
or after
the day alleged in the charge such evidence shall support the charge.
The 8th day of August, 1984 was within the time
prescribed by the Act because time was not of the essence in the
present case. The evidence
of the complainant was corroborated by
Emmanuel Makhele and Mojalefa Baartjies who saw when he (complainant)
was pushed into the
bottle store by accused 1. The two witnesses
appeared to me to be truthful witnesses and I do not agree with the
defence counsels
that they gave unsatisfactory evidence. The evidence
of M. Letsatsi also corroborates that of the complainant.

I agree
with the defence counsels that the first part of the evidence of Sgt.
Monyane with regard to what accused 1 told him at
the charge office
was a confession to police officer and inadmissible. But the second
part concerning what he observed at the scene
of the crime was
perfectly admissible. It is true that when this witness told the
Court that when this witness told the Court that
he could not make

15

sketch
plan of the office in which the offence was committed was lying.
Despite the fact that he lied on this point I accepted his
evidence
concerning his observations in the office of accused 1.

Mr.Kabatsi
has submitted that when accused 1 fired at the complainant point
blank aiming at the front part of his body, hitting
him in the
stomach, at that juncture, he certainly did appreciate that there was
a risk to his life and was reckless as to whether
or not the
complainant in fact died. I agree. And as luck would have it the
wound caused by the bullet was superficial but this
fact did not
affect intention accused 1 had when he fired at the complainant and
hit him on the stomach. I think it can rightly
be said that at that
stage he had the necessary intention to kill the complainant by
shooting a vulnerable part of his body. By
castrating the complainant
in an office where there were no medical facilities accused 1 foresaw
that the likelihood of him bleeding
to death. The fact that he
subsequently changed his mind and took him to the hospital does not
change his initial intention to
kill him.

With
regard to accused Nos. 2, 3 and 4 it is trite law that when two
persons act in consort with the intention of doing an illegal
act,
each may be liable for the criminal of the other, although the
co-operation commenced on an impulse and without any prior
agreement
or consultation R. v. Mkize, 1946 A.D. 197, S. v. Maree and Another,
1964(4) S.A. 551 0)). Accused 2 and 3 assisted accused
1 throughout
the shooting, beating and castrating and raised no objection at any
stage. They then guarded the complainant for a
very long time while
he was bleeding from the stomach wound and

16

made no
attempt to stop the bleeding or to take him to the hospital. They
knew that accused 1 had a gun and they were present when
he aimed at
the complainant and shot him on the stomach but they raised no
objection. If they merely feared their boss they still
had the chance
to raise alarm because there were many people in the bottle store who
were not the employees of accused 1. In my
view the Crown has
convinsingly proved common purpose (R. v. Levy and others 1929 A.D.
310, R. v. Cilliers, 1937 A.D. 285)).

The case
against accused 4 does not differ from the case against accused 2 and
3. When he entered into the office he saw how the
complainant was
handcuffed and bleeding from the wounds he had already sustained on
the stomach. It was clear that the complainant
was in serious pain
and his life was in danger. This notwithstanding he willingly gave
his knife to accused 1 to continue the assault
on the complainant. It
must have been clear to accused 4 that accused 1 was going to use the
knife to cause some injury to the
complainant and by so doing he
associated with accused 1 in a joint unlawful enterprise to harm the
complainant. (See Rex v Longone,
1938 A.D. 532). After giving the
knife to accused 1 accused 4 left the office. Accused 1 immediately
started stabbing the complainant
on the thigh and then castrated him.
Although accused 4 did not expressly assent to or authorize the
stabbing and castration of
the complainant, he is responsible as in
the circumstances he should reasonably have contemplated or forseen
the stabbing as likely
to be taken by accused 1. I have earlier in
this judgment indicated that castration in the circumstances of this
case constituted
attempted murder because it was likely that the
complainant would bleed to death.

17

For the
reasons stated above I formed the opinion that the Crown has proved
its case beyond a reasonable doubt. I therefore find
all the accused
guilty as charged.

REASONS
FOR SENTENCE

.

I have
taken into my consideration all the matters mentioned to me by the
defence counsels and I have taken into account: